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[2014] ZAGPJHC 338
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Shanike Investments NO 85 (Pty) Ltd and Another v Ndima and Others (22436/2014) [2014] ZAGPJHC 338; 2015 (2) SA 610 (GJ) (26 August 2014)
IAFRICA
TRANSCRIPTIONS (PTY) lTD/MVD
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO
: 22436/2014
DATE:
26 AUGUST 2014
In the matter
between
SHANIKE
INVESTMENTS NO 85(PTY) LTD
..................................
First
Applicant
ITHEMBA PROPERTY
TRUST 3 (PTY) LTD
..............................
Second
Applicant
And
NDIMA,
S
...................................................................................
First
Respondent
LUDICK, B
C
.........................................................................
Second
Respondent
PHALA, R
A
.............................................................................
Third
Respondent
MDHULI, Z
L
.........................................................................
Fourth
Respondent
MHLANGA, M
M
......................................................................
Fifth
Respondent
RAKGOALE,
T
.........................................................................
Sixth
Respondent
THE FRIENDSHIP
TOWN COMMITTEE
............................
Seventh
Respondent
THOSE ATTEMPTING
TO BLOCKADE
................................
Eighth
Respondent
THE ENTRANCE TO
FRIENDSHIP TOWN
J U D G M E N T
SPILG
J
:
The
judgment is
ex tempore
which means that there may be areas that I may amplify. However the
substance will remain the same.
NATURE OF
APPLICATION
1.
The first applicant is the registered owner
of the property in Midrand on which is situated a complex comprising
three blocks of
residential flats known as Ndlovu, Komati and
Letabong. There are a total of 266 individual flats. The complex as a
whole is called
Friendship Town.
The
second applicant appears to be both the manager and letting agent.
Unless
otherwise required, they will be collectively referred to as the
applicants.
2.
The first six respondents are occupiers of
the first applicant’s complex. They have resided in the complex
pursuant to written
agreements of lease which in the case of the
first respondent had already been terminated for non-payment of rent
with effect from
15 July 2014.
The
seventh respondent is an organisation claiming to represent the
individual respondents although its reach may be broader. However
its
constitution was not provided.
The
eighth respondent comprises all those who may have attempted to
blockade the entrance to Friendship Town. They were not individually
identified.
3.
On 31 July 2014 the applicants brought an
urgent application on notice alleging that the respondents were
intimidating and threatening
employees, were attempting to blockade
the entrance to the complex and were organising a rent boycott.
Each individual
respondent, ie. the first to sixth respondents, was
alleged to have been actively involved in these activities.
4.
The application was divided into two
parts. Part A was set down for hearing on 31 July 2014 and the
following urgent relief
was sought;
a.
to interdict the respondents, pending a
final order to that effect under Part B, from blockading the entrance
to the complex or
otherwise preventing free movement in and out of
the complex to the other tenants, applicants’ employees,
officials or agents
and from threatening, intimidating or assaulting
any of them;
b.
to authorise the applicants to serve a
notice under section 5(2) of The Prevention of Illegal Eviction from
and Unlawful Occupation
of Land Act 19 of 1998 (‘
PIE
’)
of their intention to evict the first to sixth respondents on the
basis that there exists “
a real
and imminent danger of injury or damage to any person or property if
the unlawful occupier is not forthwith evicted from
the land”.
A court order was also sought in regard to the mode of effecting
service of the notices and all other papers.
5.
The second part of the application, under
Part B, was set down for hearing on 12 August 2014. In
this part the applicants
sought;
a.
final orders in respect of the interim
interdicts under Part A; and
b.
orders evicting the first to sixth
respondents, in terms of section 5 of PIE, from their units in the
complex pending the outcome
of proceedings to be instituted for a
final order.
6.
The application was served through the
Sheriff on each of the first to sixth respondents by 13:00 on 31
July. Although service was
effected on the person who was in
occupation at each individual respondent’s unit, none was
prepared to provide his or her
identity. Service was also
effected generally by explaining the relief being sought in English,
Sesotho and isiZulu through
the use of a loud hailer.
7.
It is important to note that at this stage
the application served on each of the respondents gave notice that;
a.
the urgent relief under Part A was set down
for hearing at 16h00 on Friday 31 July and if anyone intended
opposing the relief sought
that answering affidavits were to be filed
by 15h00;
b.
the semi-urgent relief under Part B was set
down for 12 August at 16h00 and that a notice of intention to oppose
was to be filed
by 1 August with answering affidavits in by 16:00 on
4 August.
8.
The respondents were therefore afforded two
court days (albeit that there was an intervening weekend) to file
their affidavits.
There were however seven court days with two
intervening weekends between service on 31 July and the hearing on 12
August for the
final relief sought, which included the section 5(1)
interim eviction of the first to sixth respondents.
9.
My brother Makhanya J granted the interim
interdicts and authorised the service of the section 5(2) notices.
The court also directed
the mode of service for the notices and all
court papers. It is evident that the court regarded the matter
as urgent and
the relief under Part A justified, albeit that the
threshold then was the establishment of a
prima
facie
right though open to some doubt
with the balance of convenience favouring its grant.
10.
On 9 August 2014 and by 10h01 all the
section 5(2) notices were served in accordance with the directions
given. In all but
two instances personal services was
effected. In respect of the others, the notice was affixed to
the door of the relevant
respondent’s unit.
The
section 5(2) notices also repeated that the application for the
eviction of the first to sixth respondents would be heard by
the
court on 12 August 2014.
11.
On Tuesday 12 August 2014 respondents (save
for the second respondent) and many others attended court. One of the
tenants, who apparently
claimed to be an attorney, informed the court
that the respondents intended opposing the final order sought as well
as the ejectment
of the first to sixth respondents. They also wished
to challenge the urgency of the matter. However they had not filed
any opposing
papers and sought a postponement.
12.
By this stage the second respondent appears
no longer to have been in occupation or the issue was resolved in
respect of him and
the matter only proceeded against the other
respondents.
13.
Since all the respondents had been served
with the application on 31 July informing them that Part B of the
order would be heard
on 12 August and the section 5 (2) notices had
been served on the morning of 9 August on the six affected
respondents, I directed
that if any of the respondents intended
filing opposing affidavits they were to do so by Thursday 14 August
and I postponed the
hearing to the Friday.
14.
The Respondents filed an answering
affidavit to which the applicants responded. On Friday counsel
appeared on behalf of the respondents
and I proceeded to hear
argument.
THE ISSUES
15.
The following issues were raised by the
parties in relation to the individual respondents whose immediate
eviction was sought;
a.
whether the matter is urgent;
b.
whether there was a real and imminent
danger of substantial injury or damage to any person or property if
each individual respondent
was not immediately evicted;
c.
whether there was sufficient evidence to
identify each respondent individually as being responsible for such a
dangerous situation,
if it existed;
d.
whether each respondent was exercising a
legitimate right;
e.
whether there was another effective remedy.
16.
The court also requested the parties to
address it on the constitutionality of section 5(1) of PIE.
SECTION
5(1) OF PIE
17.
The provisions of section 5 of PIE read as
follows:
“
5.
Urgent proceedings for eviction
5.1
Notwithstanding the provisions of section 4, the owner or person in
charge of land may institute urgent proceedings for the
eviction of
an unlawful occupier of that land pending the outcome of proceedings
for a final order, and the court may grant such
an order if it is
satisfied that-
(a)
there is a real and imminent danger of substantial injury or damage
to any person or property if the unlawful occupier is not
forthwith
evicted from the land;
(b)
the likely hardship to the owner or any other affected person if an
order for eviction is not granted, exceeds the likely hardship
to the
unlawful occupier against whom the order is sought if an order for
eviction is granted; and
(c)
there is no other effective remedy available.
(2)
Before the hearing of the proceedings contemplated in sub-section (1)
the court must give written and effective notice of the
intention of
the owner or person in charge to obtain an order for eviction of the
unlawful occupier to the unlawful occupier and
the municipality in
whose area of jurisdiction the land is situated.
(3)
The notice of proceedings contemplated in subsection (2) must-
(a)
state that proceedings will be instituted in terms of sub-section (1)
for an order for the eviction of the unlawful occupier;
(b)
indicate on what date and at what time the court will hear the
proceedings;
(c)
set out the grounds for the proposed eviction; and
(d)
state that the unlawful occupier is entitled to appear before the
court and defend the case and, where necessary, has the right
to
apply for legal aid.
”
18.
I may add there has been no challenge to
the procedural requirements. It is the substantive issues that
are being challenged.
REQUIREMENT
OF URGENCY
19.
It will be apparent that the subsections to
section 5(1) substantially mirror the requirements for an urgent
interim interdictory
or mandatory order, namely;
a.
the basis of urgency and a well-grounded
apprehension of irreparable harm, which is set out in subsection
1(a);
b.
the factors affecting the balance of
convenience which are set out in subsection 1(b);
c.
there is no other effective remedy
(subsection 1(c)); and,
d.
the right to eject is dependent on the
respondent being an ‘
unlawful
occupier’
for the purposes of
affording the remedy under section 5, and as that term is defined in
section 1.
20.
It is therefore evident that the
requirements, including that of urgency, are statutorily prescribed.
The requirement of urgency
will be met, in terms of section 5(1)(a),
if the court “
is satisfied …
that there is a real and imminent danger of substantial injury or
damage to any person or property if the
unlawful occupier is not
forthwith evicted from the land.
”
‘
Land’
in the section (1) definition includes a portion
of land.
21.
In order to determine whether the matter is
urgent it is first necessary to consider whether the applicants are
able to satisfy
the court that each individual respondent, acting on
his own or in association with others, poses a real and imminent
danger of
inflicting substantial injury or damage to any person or to
the property.
THE
FACTS
22.
Until the end of May 2014 average rental
payment levels for the complex were over 95%. June rental
payments dipped below that
figure but were still above 90%.
However the July rental payments fell by some 30%.
23.
The applicants contended that each of the
respondents was directly responsible for the dramatic decrease in
rental payments by tenants.
24.
The undisputed facts indicate that
dissatisfaction initially arose over additional charges raised by the
applicants. The background
to the dispute concerns the steps taken by
the applicants during late 2013 to erect carports and provide 24 hour
security with
controlled access to the complex. These steps
were implemented at the request of tenants. The erection of carports
was prompted
by hail damage to motor vehicles that were parked at the
complex during a severe storm in early November 2013.
Twenty-four
hour access control was motivated because of security
issues raised by tenants. In an e-mail that was subsequently
addressed
it appears that this issue concerned ready access gained by
unauthorised persons to the complex and who were not residing there.
25.
The applicants then informed the tenants by
letter dated 12 November 2013 that these additional facilities would
result in an extra
charge of R250 per unit. Subsequently
in May 2014 a further notification was sent to all the tenants
setting out the
parking rules and access control requirements.
On
30 June tenants were notified that they would be charged a monthly
rate of R160 per unit for the security upgrade and that in
addition
covered parking would be charged at the rate of R175 per month.
26.
On the evening of 2 July 2014 a group of
people demanded that the applicants’ security guards leave the
complex and threatened
to set the security guard facilities alight.
A
general letter was sent to all tenants on the following day informing
them that should such conduct persist criminal charges would
be laid,
an urgent court interdict would be sought and that any tenant who,
after receipt of the letter, was involved in such activities
would
have their leases terminated without further notice and would be
required to vacate the property immediately.
Moreover
letters to the same effect were sent individually to the first,
third, fourth and fifth respondents. It is unnecessary
to deal
with any of the letters that were sent to the second respondent.
27.
These letters prompted an email reply by a
group which identified itself as the Friendship Town Committee, the
cited seventh respondent.
The letter is unsigned.
However from its contents it is evident, as submitted by the
applicant, that it was written by a
lawyer. The email refers to
the “
alleged unlawful conduct”
claimed by the applicants and is written on behalf of the individual
tenants to whom the applicants had addressed the letters of
3
July. These individual tenants were described as
“
clients
”
of the seventh respondent and the email was sent with the express
reservation of rights.
28.
The gist of the email was to claim that the
allegations against the “
clients”
constituted inadmissible hearsay “
until
confirmed by the informant
” and
that they have no knowledge of the allegations, which they in any
event deny.
The
applicants’ attorneys responded to this letter on 4 July by
advising, amongst other things, that no action will eventuate
unless
further unlawful acts were perpetrated.
29.
Also on 3 July a letter was delivered to
the second applicants’ offices objecting strongly to the
carport charges which were
considered to be capital expenditure that
the owners were obliged to incur but which were being passed onto the
tenants who could
ill-afford the extra charge.
A
number of other incidents also occurred on 3July. During
the day a group of people forced their way into the assistant
building manager’s flat and intimidated her and her children.
Later the same evening the first applicant’s building
manager
was threatened and told that he would be burnt inside his unit
because he was providing information to his employers.
30.
The applicants relented to the
representations regarding the carport charges and resolved not to
implement these additional charges.
On 8 July they informed the
tenants by way of a general letter to this effect.
Tenants were also requested to treat
the security and staff personnel
with respect and the warnings issued in the earlier letter of 3 July
were repeated regarding the
consequences to any individual tenant if
he or she abused, intimidated or threatened personnel.
31.
It is common cause that the letter of 8
July confirmed that the dissatisfaction with the proposed increased
charges had been satisfactory
addressed and resolved.
32.
Matters then settled down until shortly
before the end of the month. On 29 July two tenants
addressed emails to the
second applicant advising that meetings had
been held at which it was resolved not to pay rent until certain
unspecified enquiries
were resolved.
They
were also informed that on Friday 31 July tenants would lock the
gates from 03h00 and no one would be allowed in or out of
the
complex. This would mean that tenants could not go to work and their
children could not go to school. One of the
emails
claimed that there was a threat to burn the building manager on
Friday. The one email was sent by a tenant who
had paid
rent for the month and wanted to know what measures would be put in
place so that residents could safely go to and return
from work.
33.
A letter was addressed on the same
day, i.e. 29 July, to each of the first to sixth respondents claiming
that they had associated
themselves in a number of violent, unlawful
and intimidatory actions against other tenants and the first
applicant’s agent
and employees.
The
actions were identified as;
a.
threatening to burn the building manager
inside his flat;
b.
severely intimidating the assistant
building manager, forcing their way into her flat and threatening
her;
c.
threatening the security personal and
demanding that they move off the premises as well as threatening to
set the guard facilities
alight;
d.
calling for a rent boycott;
e.
participating in the organisation of a
planned lockdown of the complex and threatening that no tenant would
be allowed to enter
or exist whether for work or to take children to
school.
34.
The letter addressed to the first
respondent informed him that his lease had already been terminated as
he was substantially in
arrear with rental and was required to vacate
by 30 July, failing which urgent eviction proceedings would be
instituted.
Those addressed to the other individual respondents
gave notice that their leases were terminated by means of the letter
with immediate
effect and they too were to vacate by noon on 30 July
failing which their urgent eviction would be sought.
35.
In response, the seventh respondent sent an
email on 30 July. Again the seventh respondent claimed to represent
“
collectively
”
the individual respondents who had received the letters of 29 July.
The applicants’ attorneys were informed
that;
a.
the lawful ownership of the complex was
disputed and “
is deemed invalid”
;
b.
during the June/July period numerous
attempts were made to raise concerns directly affecting tenants but
were ignored and that the
second applicant had advised that it would
not entertain any black tenants on their property which constituted
racist remarks,
“
and purport
unfair discrimination which in layman’s language understands
a
deadlock for violence as was provoked
.”
(emphasis added);
c.
there will be a peaceful and protected
march to submit a memorandum of grievances;
d.
the seventh respondent had not suggested a
rent boycott but the authorities had and the seventh respondent
“
could not hesitate to walk in.”
The
authorities referred to are eight in number and are said to include
the Mayor’s Office of Ekurhuleni, the Office of the
MEC of
Human Settlements in Gauteng, the Ekurhuleni Metropolitan
Municipality and the Johannesburg Metropolitan Municipality;
e.
the march would be covered by the media “
as
our client has invited them to spread tenants’ struggle to the
members of the public at large.”
f.
the individual respondents whom the seventh
respondent represents are, “
currently
in talks with the Chinese Government under the auspices of the
Chinese Ambassador’s office in South Africa as they
contributed
greatly to the lowest cost project in order to realise a dream of the
poorest of the poor to own a house in their lifetime
moreover to
support the government’s project of Reconstruction Development
Project. Validated information confirms
that they are
lawful donors of the project (Friendship Town) to the Ekurhuleni
Metropolitan Municipality.
”
g.
the seventh respondent had been advised by
the individual respondents it represented that “
they
understand that revolutions is not about a bed filled with a punch
(
sic)
of red roses.”
36.
On the undisputed facts it is therefore
evident that on the respondent’s own say-so;
a.
they were actively engaged in
promoting a rent boycott which they intended to extend through a
publicised march and which they claimed
had been suggested by the
authorities;
b.
they did not dispute that there would be a
blockade of the complex on 1 August;
c.
the issues included the lawfulness of the
first applicant’s acquisition of the complex;
d.
it was recognised that there had been
violence but it was said that this had been provoked.
37.
In addition it was not disputed that fights
broke out at the public meeting on 29 July where one tenant assaulted
another and where
a group who attended this meeting then approached
the building manager chanting “
Down
with Ithemba, down with the rent
”.
It
was also not in dispute that there were incidents affecting the
ability of certain tenants to freely access the complex.
By
this stage it was clear that the court proceedings were being
instituted to interdict the proposed blockade.
38.
On 11 August the second applicant deposed
to a supplementary affidavit which set out events that occurred
despite the grant of the
urgent interdict on 31 July.
These included;
a.
on 1 August and shortly prior to 07h30 a
bakkie, marked with the logos of a political party, stopped at the
complex. A number of
tyres were being carried in the rear. Some
four men who were riding on the back of the vehicle then took the
tyres off the
vehicle, placed them on the road outside the complex
and proceeded to set them alight. The arrival of the
vehicle and
the removal of the tyres were captured in photographs
attached to the affidavit;
b.
security guards reported that they
continued to be threatened. They were told that they would be
shot. This prompted
the SAPS to be called.
Nonetheless protestors started burning tyres in the street.
It is also clear that
some of those who attended the meeting were
bussed in from outside;
c.
on 4 August two of the applicants’
cleaners were approached and told to inform all new tenants that they
can pay their rent
to a particular person;
d.
by 8 August only 38% of tenants had in fact
paid their rent. Non-payment therefore had increased by over
sevenfold (R602 000
outstanding by this time of the month as opposed
to a norm of only R80 000). Applicants bond repayments
alone are R580
000 per month while running expenses amount to R250
000 per month. The net result is that on present figures
the first
applicant cannot service its debt repayments should the
rent boycott continue;
e.
those present at a meeting attended by
approximately 200 people on 10 August were informed that the complex
belonged to the Government,
will become RDP houses and that
foreigners will be chased off the complex. As a result
increased security was provided
to protect non-South Africans.
f.
on 10 August the car tyres of a tenant who
was accused of supporting the landlord were punctured;
g.
ordinary tenants were being confronted late
at night with calls for contributions.
39.
The Respondents’
affidavit was deposed to by Mr Thokozani who is the chairperson of
the seventh respondent. The
respondents challenged
urgency, disputed that there had been violence, denied intimidation
or a blockade and also referred to the
municipality’s request
that the matter be referred to the housing tribunal for adjudication
in respect of the non-payment
of rent. The affidavit then
proceeds to deal with the reason for the actions taken.
In light of the earlier email
those actions related to the rent
boycott. I will consider this in more detail later.
40.
In an attempt to meet the respondent’s
claim that they had a legitimate right to organise a rent boycott,
the applicants in
reply set out the history of the complex’s
acquisition. Again this aspect will be dealt with separately.
OPPORTUNITY
TO FILE AN ANSWERING AFFIDAVIT
41.
The respondents did not deny that at a
meeting on 10 August the person known as the Thabiso claimed that he
will represent them
at court and that it was unnecessary to obtain
legal representation. Indeed a person claiming to be an attorney did
represent the
respondents when the matter was called and he sought a
postponement.
42.
I am satisfied that if any of the
respondents seriously intended to engage the applicant and raise a
bona fide
defence to the ejectment sought then they had ample opportunity to do
so. The failure to file any such affidavit setting out the
position
of the individual respondents against whom urgent eviction orders
were sought is not explained. Nowhere is
it suggested
that they were unable to file an affidavit in good time or that there
was insufficient time to do so within the two
week period between
receiving the application and the date of hearing. There
is no application for condonation.
43.
A litigant cannot attempt to frustrate an
application if it is indeed urgent by seeking indulgences without
some justifiable basis.
In the present case the respondents sought to
play the system. In the case of the first respondent he was in arrear
with payment
of rental in excess of R90 000. Considering that his
basic rental is some R3500 per month, he effectively breached the
terms of
his lease by failing to pay rental for a very lengthy period
of time. As stated earlier he had already been given notice to vacate
by 15 July 2014 because of his failure to pay rent under the lease.
44.
While the other individual respondents have
only been in arrears for some two months or so, nonetheless in terms
of their lease
agreements the applicants are entitled to terminate
the agreements and to evict on notice for non-payment. The
respondents confirmed
through the email of the seventh respondent and
the affidavits filed on their behalf that rental will not be paid.
The applicants
are therefore well within their right to evict subject
of course to PIE. The only basis upon which the individual
respondents can
avoid ejectment is if they have some other right
either under PIE or by reason of the development of some other legal
right or
protection.
URGENCY
AND DANGER OF INJURY OR DAMAGE
45.
At this stage of the enquiry, the
entitlement of any respondent to act as claimed is not relevant. Of
relevance is whether the facts
alleged by the applicants entitle a
court to draw the conclusion that “
there
is a real and imminent danger of substantial injury or damage to any
person or property”
if the
unlawful occupier is not forthwith evicted from the land in terms of
the requirements laid down by section 5 (1) of PIE.
I
proceed to consider whether this requirement has been satisfied.
46.
Firstly each individual respondent was
already given notice which terminated his tenancy. It is not disputed
that they are therefore
unlawful occupiers for the purposes of PIE.
47.
The claim that there was no violence or
that the blockading did not eventuate or that there has been no
intimidation does not address
another fundamental ground alleged for
necessitating the application. The applicants claim that the actions
of the respondents
amount to undermining their rights by attempting
to make the complex unmanageable and uneconomical or render them
unable to continue
operating effectively.
48.
The ground is that the actions are directed
at subverting the first applicant’s right of ownership so that
the complex may
be taken over by others who have no legal rights. The
respondents indeed confirm that their objective is to implement a
rent boycott.
In addition the applicants rely on a polarisation which
is not in dispute, although the claim of fuelling xenophobia is in
dispute
and is emphatically denied.
49.
I turn to the issue of intimidation.
It would also be naïve to adopt an armchair approach and believe
that without any
intimidation a complex with well over 95% rent
payment levels can be reduced to a mere 30% compliance within
literally a period
of a month and a half.
50.
The court however must be astute to
guard against manufactured urgency. In this case the
photographs which captured
a group of men taking tyres off a “bakkie”
and the evidence of setting them alight despite the apparent presence
of
police is an act clearly intended to intimidate, indicates an
intention to resort to violence and to render the complex
unmanageable
by resorting to fear and intimidation, if necessary. I
again refer to the contents of the email which confirmed that there
was
violence, whatever its alleged justification might be.
51.
These actions were intended to obtain
submission through a show of force and compliance (with the continued
boycotting of rental
payments) which can only be maintained by the
constant threat of force and bullying tactics. The objective,
whether political
or opportunistic, as was the case in the
Johannesburg CBD and in Hillbrow, is to render the property
unmanageable, ungovernable
and uneconomical to hold.
52.
Considering that the complex consists of
266 units within the Midrand area, there are immediate consequences,
not only to the other
tenants and their children but to others in the
immediate vicinity as the campaign is intended to be on-going which
will result
in no services being capable of being provided in what is
presently a pristine building. This leads the court to the only
realistic
conclusion, having regard also to what is seen elsewhere in
Gauteng as the consequence of such action irrespective of motive,
namely
the intimidation of law abiding people and the immediate
degradation of buildings when taken over.
53.
In the present case there is no reason for
the property owner not to beef-up security, proceed to eject those
who do not pay and
to otherwise secure the complex. The intent of
those responsible for the rent boycott and other actions remains to
take over the
complex by ensuring that rent is not paid, that the
complex is rendered unmanageable through fear, bullying, and
intimidation.
This is a recipe for conflagration which has already
spilt over into the streets.
54.
In my view this is a classic case which
section 5(1) was intended to address.
ALTERNATIVE
REMEDY
55.
The respondents contend that there
was an effective alternative remedy; namely to proceed to mediation
before the Gauteng Rental
Tribunal. Indeed the Ekurhuleni
Metropolitan Municipality’s Department of Human Settlement
Corporate office addressed a letter
to the Registrar of this court
dated 14 August 2014 requesting that this court direct such a
referral.
56.
There are a number of impediments in doing
so. The most obvious is that effectively a complaint may only
remain the subject
of a referral provided rentals (at
pre-escalation rate, if applicable) continue to be paid, failing
which the landlord may
evict; see
section 13(7)(b)
of the
Rental
Housing Act 50 of 1999
. Secondly, this is a rights issue. A court
should be slow to turn to mediation when litigants make out a case
claim that clear
legally protected rights are being invaded and seek
the protection of the courts. Thirdly, if the respondents are
responsible for
the rent boycott and intimidation then they have made
it clear that they intend continuing with the boycott. Finally,
mediation
requires that both parties to a
genuine
dispute intend to engage in resolving the issues in good faith.
57.
In the present case, at no stage has it
been suggested that the intimidation will abate (and despite clear
evidence it remains denied)
or that there will be a moratorium of the
rent boycott. It also appears that the municipality was not aware
that there had been
effectively no issue with regard the payment of
rental and that overnight only 30% are now paying rent despite there
being no increases
in rent or other issues which may have only
presented themselves now.
58.
One would at least have expected a
memorandum of grievances presented to this court. Despite repeatedly
enquiring what the grievances
were, I was assured that there were
only two: the one concerned the charge raised for the carports and
the other with regard to
whether the first applicant acquired the
property in an underhand manner.
59.
As to the former, counsel for the
respondents readily conceded that this would had been resolved by the
letter of 8 July.
As to the latter, the court is in as good a
position to determine whether it is a genuine dispute legitimately
directed at the
applicants.
60.
I am therefore satisfied that the
jurisdictional ground for mediation under the relevant legislation is
wanting and that this is
not an appropriate case to refer to
mediation at this stage, having regard to the dynamics and conduct of
the respondents.
61.
I rule that the matter is urgent in
relation to the individual respondents. Since there is no challenge
to the other interdictory
relief which is premised on not curtailing
lawful activity and bearing in mind that the interim order did not
appear to have been
fully respected it is necessary that there be no
misunderstanding about the resolve of the court, in respect of the
order made
by my brother Makhanye J, to ensure that the hundreds of
residents including children have the benefit of a final order.
ENTITLEMENT
TO ORGANISE A RENT BOYCOTT
62.
There are two elements to the application.
One relates to the respondents’ alleged intimidation and
threatens to others and
the consequent possibility of further
violence. The other is that the effect of the rent boycott, which if
it continues, will directly
cause the degeneration of the property
and affect all those occupying under lease agreements (as the
economic consequences
are self-evident from the financial figures
provided). It will also continue to cause confrontation creating the
real risk of conflagration
with children also at risk of injury
bearing in mind the size of the complex and the polarising nature of
the rent boycott and
its inevitable consequences.
63.
The second aspect however begs the question
as to whether the rent boycott can be a lawful or otherwise
legitimate response similar
to withholding labour from an employer in
an industrial dispute.
64.
This raises three issues. The first is
whether the dispute is real or
bona
fide
. The second is whether the nature
of the dispute is sufficiently linked to the landlord as to find a
basis for the tenant to withhold
rental and the third is whether such
interest or right can trump the right of the landlord to eject for a
failure to pay rent.
This would involve constitutional issues
including the right of association, dignity and to housing.
65.
The respondents claim that the main purpose
of the rent boycott was to address the housing backlog and in
particular those individuals
who cannot qualify for either RDP
housing or commercial loans.
66.
The respondents referred to a research
paper which was handed up to court being that of the South African
Institute of International
Affairs dated April 2009 and entitled
‘
Chinese Development Co-operation
in Africa; The Case of Tembisa’s Friendship Town’
.
According to the respondents, and relying on the research paper, the
project was built by the People’s Republic of
China and handed
over to the municipality, which in turn formed what was known as a
section 21
not for profit company. The aim of the company was
to generate more income, to take the property boom in South Africa
and
re-invest the proceeds of the project into other commercial
property developments so that more funds could be created to build
houses and thus address the housing backlog in Tembisa. The
respondents then state the following;
“
How
the project landed up
in the private
companies and the applicant in particular is mysterious and it is the
main source of all the problems accompanying
this conflict.”
67.
The affidavit then continues;
“
The
committee has decided that since the funds generated in this project
cannot be utilized for the purpose for which the project
was
initially intended”
and then the
affidavit goes silent
.
I
can only conclude that there was a deletion of certain words. The
extract can only make sense if the committee’s decision
was the
withholding rental, which is consistent with the contents of other
documentation provided by the respondent.
68.
The applicant in reply dealt with the
background to its acquisition. It referred to the previous
owner being AFCO Holding
(Pty) Limited which had acquired it through
a simultaneous transfer from Letabong Housing Institute. AFCO Holding
and its predecessor
in title, also known as the
Affordable Housing Company, were organisations effectively
established in the Johannesburg inner
city to provide affordable
housing.
69.
Although the property is situated in the
jurisdiction of Johannesburg it was, at that stage, within the
Ekurhuleni area. The housing
project was developed with funding from
the Chinese Government. Moreover the housing units, comprising
freestanding houses as well
as the four complexes now under
consideration, were at no stage intended as free housing for the
lowest income group in terms of
the reconstruction and development
programme. They were intended to be sold by way of sectional title.
70.
The Limpopo block was put up for sale on
sectional title first, and some 30 to 40 units were sold to private
individuals. When the
balance of the sectional title units could not
be sold because of the difficulty in obtaining bank funding the
National Housing
Finance Corporation was approached. The NHFC did not
offer end user funding and referred the management of the complex,
namely
under Ekurhuleni Development Corporation, to AFCO which at
that stage was able to offer end user funding. However AFCO was
moving out of the end user funding market and instead offered to
purchase the balance of the units in the Limpopo, Letabong, Ndlovu
and Komati blocks outright, which it did.
71.
The first applicant still owns
approximately 8 units in Limpopo having over the last period of the
year, also sold the balance of
the Limpopo units it had purchased on
sectional title.
72.
The Letabong, Ndlovu and Komati units are
owned outright by the first applicant..
73.
The applicants therefore contend that any
claim that the property was obtained by improper means is incorrect.
Any suggestion
that the complexes were built for purposes of RDP
housing is also wrong. It is contended that no multi-storey RDP
accommodation
exists in South Africa other than a recent development
in Alexandra. Moreover the intention of the EDC to sell units
by way
of sectional title was only partially successful as a result
of which AFCO had to step in and purchase the balance of the
sectional
title units and also purchase outright the remaining three
blocks in the complex.
74.
It appears that AFCO had run the three
blocks in the complex most successfully until 2011, when purchased by
the first applicant.
The first applicant claims that it
has spent more than R3 million on refurbishing the three blocks since
taking transfer.
Perhaps most important in relation to the
contentions advanced in the respondents’ affidavit is that the
title deed, which
is attached to the papers, reflects that the first
applicant paid just under R61,5 million to AFCO Holdings to purchase
the complex.
The effect is that, through a
section 21
company, the
municipality indeed obtained the benefit of some R61,5 million which
one would assume was then utilised in accordance
with the city’s
objectives.
75.
In concluding this part, it is
appropriate to read certain extracts from the South African Institute
of International Affairs research
paper. It is a thirteen page
document excluding the end notes. I will refer to two extracts,
the first is from page
12 under the heading ‘
Assessing
the Tembisa Friendship Town Project’
.
“
The
Tembisa Friendship Town project was and remains a success.
It can lay claim to being the first Chinese government
grant project
in South Africa. It was also the very first project implemented
and delivered by a Chinese state owned enterprise
in South Africa.
More importantly it provides a sustainable model for foreign aid
projects that could be emulated elsewhere.
The model linking
and involving all project stake holders demands that the operation
between the donor and the end receiving government
between government
communities and between the implementing organisation and the
community. Remarkable achievement for the
Friendship Town
project was largely due to the following factors. Most
important was the involvement of the community.
The need for
the project was identified locally by the council and this need was
recognised and supported by the donor, the Chinese
Government, who
was willing to provide a housing project addressing this specific
local need. Thereafter the transfer, skills
and capacity
building throughout the project ensured further benefits to the
community beyond just houses delivered by the project.
Through
this process the people of the community were empowered in a close
community spirit development. Secondly the project
was driven
by the enthusiasm of two forceful leaders and last but not least the
CCOEC being one of the implementing organisations
who is the
responsible implementing party with extensive international
experience the company can speedily adapt to the South African
business environment. It went the extra mile to assist the
community through its consultation and skill transfer but went
beyond
simply fulfilling its responsibility as a construction company.
This off-set the language and cultural barriers that
posed problems
earlier on and one that supports the community.”
The
second extract appears in the conclusion, where the following is
said:
“
Tembisa
Friendship Town project, although only one example of Chinese
economic co-operation with Africa nonetheless points to the
weight
the constructive impact that the engagement with China can have on
the continent. The emphasis on consultative practices
and
identifying local needs in conjunction with the community serve both
Chinese and African interests and coupled with the conscious
effort
to transfer skills and hire workers locally brought concrete benefits
to the township. Concurrently the desire to ensure
that the project
would be commercially orientated and sustainable in the long term
laid the financial foundation for the extension
of the success in
future.”
I
pause to emphasise that this was not a project intended for the
poorest of the poor but was intended to be commercially orientated.
I now return to the conclusion;
“
The
fact that this did not occur in part due to the absence of any
evaluation or review by the government parties involved, in other
words, not the private sector but the government parties involved has
meant that the lessons of the Tembisa Friendship Town project
will
unfortunately not be systemically integrated into future endeavours.
“
The
last sentence reads “
The spirit of cooperation surely
demands otherwise.”
76.
It is therefore evident that this was a
commercial project, that the first applicant as a registered title
holder paid some R61,
5 million to acquire the complex and that money
would have gone back to the City’s section 21 company to be
utilised for
the benefit of the municipality’s programs.
It is also clear that the project was not intended to provide housing
for
the poorest of the poor, although there were clearly benefits
during its development stage that would have assisted in the
upliftment
of communities through employment and transfer of skills
during the construction phase.
77.
The question then concerns the store we
place on the respondents’ assertion that they are entitled to
undertake a rent boycott
to achieve an objective that has no
substance
vis a vis
the
applicant and where the causal connection claimed cannot withstand
even the most basic scrutiny.
78.
In my view it justifies the conclusion that
there must be another motive for the actions taken by the respondents
since clearly
the rent boycott cannot be to return the building to
status it was. The attempt to utilise or to justify the rent boycott
on this
basis is disingenuous and not
bona
fide
.
79.
In so far as the demands or claims for low
cost housing and the attempt to utilise the rent boycott to promote
that purpose or to
promote the RDP project is concerned, this court
is satisfied that the rights claimed by the respondents
(although only expressed
as a right to boycott the payment of rent)
do no go so far as to disturb the existing relationships
voluntarily
assumed between willing parties to a rental agreement where the
issue is unrelated to the leased property.
80.
Moreover our common law in relation
to withholding rental is strong enough to cater for all those
situations where a tenant is entitled
to withhold rent and also under
the statutory provisions provided for under
section 4(1)
of PIE with
which I will now deal.
81.
There are a number of cases that have
considered the application of
section 4(1)
of PIE in so far as it
impacts on the rights of private landlords. The first is
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd
,
2012 (2) SA 104
(CC) at
para 40 where, the judgment of Van der Westhuizen J indicated that
private owners who require ownership of occupied property
may “
have to be somewhat patient”
reasoning that:
“
An
owners rights to use and enjoy property at common law can be limited
in the process of the justice and equity enquiry mandated
by PIE.”
82.
In order to decide whether eviction by a
particular date would be just and equitable in the circumstances, the
court considered
it necessary to determine whether land had been made
available or could reasonably be made available. It therefore had to
consider
the City’s obligations in relation to alternative
emergency accommodation.
As
is evident the current situation before this court is far removed
from that. There is no suggestion that the tenants, or erstwhile
tenants, are not paying rent either because they cannot afford to or
because of the rentals have gone up.
83.
The next case is
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012
(6) SA 294
(SCA). This was an appeal against an order
authorising the eviction of occupiers from a commercial building in
Doornfontein.
The building had apparently been hijacked and was
no longer under the owner’s control. It was said to be
unfit for
human habitation and was occupied by those who were
extremely poor. This court granted an order authorising the
eviction
of the occupiers. When the matter went on appeal, Wallis JA
in the Supreme Court of Appeal held that, although it was
overwhelmingly
likely that the occupiers were poor and likely to face
homelessness on eviction, the high court nonetheless lacked
sufficient information
about the circumstances of the occupiers to
exercise the necessary discretion required under PIE. The
Supreme Court of Appeal
emphasised the prospect of homelessness and
availability of alternative accommodation in the exercise of a
discretion under PIE,
but stated that each case must be considered on
its own facts.
84.
Moreover the court observed that an
eviction order in circumstances where no alternative accommodation is
provided is far less likely
to be just and equitable than one that
makes careful provision for alternate housing. At paragraph 15 the
SCA observed that neither
PIE nor section 26 of the Constitution
provides an absolute entitlement to be provided with accommodation.
In some circumstances
a reasonable response to potentially homeless
people may be to make permanent housing available and in others it
may be reasonable
that no housing at all is made available.
85.
The SCA continued that throughout a court
must be mindful of all other relevant factors including the resources
available to provide
accommodation. The court then observed the
clear distinction between property that is owned by the State and
that owned by
a private person. It continued by stating, at paragraph
18, that private owners are not obliged to provide housing and that
the
availability of alternative accommodation is more likely to bear
on when, and not whether, an eviction order should be granted.
86.
The SCA then said that a court hearing an
application for eviction at the instance of a private person or body,
owing no obligation
to provide housing or to achieve the gradual
realisation of the rights of access to housing under 26 (1) of the
Constitution, is
faced with two separate enquiries:
a.
The court must decide whether it is just
and equitable to grant an eviction order having regard to all
relevant factors.
Under section 47 those factors include
the availability of alternative land or accommodation. The weight to
be attached to that
fact must be assessed in light of the property
owner’s protected rights under section 25 of the Constitution
and on the footing
that a limitation of those rights in favour of the
occupiers will ordinarily be limited in duration.
b.
Once the court decides that there is no
defence to the claim for eviction and that it would be just and
equitable to grant an eviction
order, it is then obliged to grant
that order. However before doing so, it must consider what justice
and equity demands in relation
to the date of implementation of the
order and it must consider the conditions that must be attached to
its order. In that secondary
enquiry the court must consider the
impact of an eviction order on the occupiers and whether they may be
rendered homeless or need
emergency assistance to relocate elsewhere
Accordingly,
an eviction order cannot be granted until both enquiries have been
undertaken and a conclusion reached that the grant
of an eviction
order, effective from a specified date, is just and equitable. Nor
can the enquiry be concluded until the court
is satisfied that it is
in possession of all the information necessary to make both findings,
based on justice and equity.
See paragraph 25 of the judgment.
87.
The most recent case is
Mpango
v Angus Lifestyle Properties (Pty) Ltd
2012
(3) SA 531
(CC). The court considered the impact of the
constitutional protection against eviction by a landowner pursuant to
terminated
lease agreements. The judgment also dealt with the
role of the Rent Housing Tribunal established in terms of the Rent
Housing
Act 50 of 1999. The majority of the court effectively stayed
the appeal pending the residents having their complaint of an unfair
practice adjudicated upon by the Tribunal. Writing for the
majority, Cameron J held that the critical question was whether
the
landlord was entitled to exercise the bare power of termination in
leases for the sole purpose of securing higher rentals.
The
tenants relied on a number of arguments to contend that the landlord
was not permitted to terminate in such circumstances;
there was a
contractual argument, a constitutional argument and a statutory
argument.
88.
Cameron J set out a comprehensive account
of the context and purpose of the
Rental Housing Act and
the role of
the Tribunal (at paragraphs 29 to 44). The judgment indicated that
the Rent Housing Act created a more complex, nuanced
and potentially
powerful system for managing disputes between landlords and tenants.
Neither the landlord nor the tenant
had fully appreciated the force
of the Act’s provisions in litigating their dispute; The court
clarifying that the
Rental Housing Act is
“
Super-ordinate
to the contractual arrangements between the parties and that the
landlord’s action may constitute an unfair
practice even though
it may be permitted by the lease and the common law.
”
The
court therefore overruled the Supreme Court of Appeal’s finding
that the term ‘
practice
’
as used in the Act envisaged only incessant and systemic conduct by
the landlord which is oppressive or unfair.
The majority
also found that, although withdrawing their complaint from the
Tribunal, the occupiers never abandoned or waived their
right to
pursue it.
89.
It will be noted that these cases are
removed from the current situation. In the present case the
individual respondents do
not claim that their grievance is as a
result of increased rental, but rather that they wish to support a
move to boycott the payment
of rentals for what is claimed to be an
issue that goes outside the terms of their lease, and is ultimately
based on whether or
not the first applicant could take lawful
transfer of the property and whether the project ought to have
secured housing for the
less fortunate, which does not include them.
90.
I have already dealt with these contentions
and have found that the claim is not
bona
fide
. There is another purpose
for which the non-payment of rent is directed; it is effectively to
render the complex unmanageable,
ungovernable and uneconomical for
the landlord to continue owning, with the objective that it be taken
over by others, whoever
they might be.
91.
I am accordingly satisfied that any
other constitutional right or right under PIE is not adversely
impacted by what has taken place
in this specific case.
THE
INDIVIDUAL RESPONDENTS
92.
The remedy provided for under section 5 may
be draconian depending on the facts. However in the case
of an occupier
who has already remained in occupation well beyond the
time of his eviction notice, and is gainfully employed with
alternative
accommodation to go to, then not only would the ordinary
incidence of the common law that prevailed prior to PIE result in him
remaining well beyond the date he or she should have been ejected,
but the individual would also be taking advantage of the provisions
of PIE which are meant to alleviate the plight of those, to which
group he or she knowingly does not qualify.
93.
Nonetheless it is essential that the
applicant satisfy the court that each respondent who remains as an
occupier in the complex
individually poses a danger to people or
property. I appreciate also that this is a case for final
relief and that the ordinary
Plascon
Evans
principles apply. I have
previously indicated that where constitutional rights are affected a
court may more readily refer
a matter to oral evidence and this I
have considered as well.
94.
In the present case the individual
respondents, through the seventh respondent’s emails and
affidavits, confirm that they
are all actively involved in the rent
boycott. However that is not enough to demonstrate that they pose a
danger to the property
or to others.
95.
The following evidence was presented by the
applicants with regard to the involvement of each respondent.
96.
The first respondent
:
With
regard to the events of 3 July 2014 mentioned earlier, where a number
of people forced their way into the flat of the first
applicant’s
assistant building manager and intimidated her and her children, it
was averred that each of the respondents
were involved.
In
relation to the threat to the first applicant’s building
manager a short while later, it was averred that the manager was
informed by the first respondent that he was going to burn him inside
his flat because he is taking information to his bosses.
Whether this evidence was supported by affidavit was confirmed when
the affidavit of the building manager was handed into court
and made
available to respondents’ counsel.
Even
in relation to an earlier event it was averred that on the evening of
2 July 2014 a group of people headed by the first, third,
fourth and
fifth respondents told the security guards to move off the premises
and threatened to set the security guards’
huts alight.
Then again it was averred that when the first respondent had already
threatened to burn the building manager
in his house, the other
respondents chased the security guards away from the premises and
threatened to burn their security structures.
In
addition, at the meeting of 29 July, which was mentioned earlier, a
group approached the building manager chanting “
down
with Ithemba, down with the rent”
.
It was averred that the first respondent addressed this meeting with
a loud hailer stating that he had the support of the
Johannesburg
Metropolitan Police Department and the South African Police Services
(‘
JMPD
’
and ‘
SAPS
’
respectively) and that their cause was supported by the
community in Tembisa.
97.
The third, fourth and fifth respondents
:
I
have already mentioned their active support, together with the first
respondent, in respect of the incident during the evening
of 2
July.
I
also mentioned the contents of the letter addressed by the seventh
respondent which was purportedly written on their behalf and
in
respect of which they have not dissociated themselves.
98.
I am accordingly satisfied that the first
respondent is actively involved, having been responsible for
addressing the group for
at least part of the time on 29 July, in the
organisation of the rent boycott and cannot be blind to the
consequences of the acts
of violence and intimidation. Having regard
to the contents of the letter, he was clearly involved in the
organisation and implementation
of the rent boycott. The third,
fourth and fifth respondents were also involved in the organisation
of the rent boycott and have
actively associated themselves with it
and its objectives, as stated earlier, to render this large complex,
with almost three hundred
principal tenants some with school going
children, not only uneconomical to maintain but also unmanageable and
ungovernable through
intimidation and, as appears earlier, admitted
violent actions.
99.
The applicants sought to impress on this
court that the sixth respondent was continually referred to as being
amongst those involved.
However, at no stage was the sixth
respondent specifically identified and the generalised averment, in
my view, is insufficient
to result in this court being satisfied on
paper that the sixth respondent also actively involved himself in the
actions undertaken
by the other individual respondents.
100.
I have already indicated that eviction
notices were served and the time by which the individual respondents
were to have vacated
has since passed. Nonetheless
section 5 (1) can have draconian effects particularly where occupiers
may have difficulty
in finding alternative accommodation.
101.
If regard is had to the seriousness of the
conduct complained of, its consequences and the clear link between
the actions of the
first, third, fourth and fifth respondents in
organising, encouraging and perpetuating it, the court is satisfied
that there is
a real and imminent danger of substantial injury or
damage to persons and property if they are not evicted. As appears
above consideration
must also be given to the safety and wellbeing of
the children; it will be recalled that they would also have been
caught up in
the barricading of the complex if the urgent order had
not granted by my brother Makhanya J. I have also mentioned
previously that
there is a general risk to them if the
polarisation continues and the applicants start enforcing their
lawful rights to collect
rental. Irrespective of whether this is part
of the individual respondent’s stratagem it further exacerbates
the reasonable
apprehension of danger to the safety of all rent
paying tenants in the complex.
BALANCE
OF CONVENIENCE
102.
It remains necessary to be satisfied that
the balance of convenience test under section 5(1)(b) favours the
applicants. In this
regard, save for the first respondent, each
respondent claimed when completing the agreement of lease that he had
alternative accommodation
to go to if the lease was terminated.
103.
The applicants were unable to locate a
written lease signed by the first respondent, if any. Nonetheless the
first respondent’s
eviction is imminent and the date by which
he was to have vacated has since passed. He has amassed substantial
arrears of over
R90 000 and has not indicated any intention to pay
any of it.
104.
None of the respondents claim hardship or
that they were unemployed or could not go to the alternative
accommodation that they had
indicated. As appears earlier, the
respondents were vociferous in challenging the proposed charges
for the carports
which suggests that they have motor vehicles and
have a standard of living which necessitates the additional security
and access
services they had called for and obtained.
105.
Again one must not lose sight of the
constitutional issues involved insofar as they weight the respective
rights of the individual
respondents, the rights of tenants (who are
paying or wish to pay their rent and are entitled to the full use and
enjoyment of
their units and the common area without fear of harm to
themselves or their families), and the applicant. I believe that
these
have been addressed, as between the individual respondents and
the applicant in the cases mentioned earlier. The protectable
interests
and freedoms of ordinary tenants who are obliged to pay
rental in terms of their leases are at risk.
106.
As stated earlier, a court cannot adopt an
armchair approach when confronted with the figures of over 90%
payment levels in June
which went down to 38% after rentals fell due
for August despite it being common cause that there was no genuine
grievance
vis a vis
the
complex that could account for such a high levels of default within
such a short space of time. The only reasonable inference
is that
tenants have been intimidated or genuinely fear intimidation if they
do not comply with the boycott organised and perpetuated
by, at the
least, the individual respondents.
107.
Returning to the interests of the
applicants: I have already identified them and I am satisfied
that the provisions of section
5(1)(b) overwhelmingly favour the
applicants. Indeed there has been no evidence to suggest
hardship to the respondents.
108.
The provisions of section 5(1) seek to
balance the rights each individual unlawful occupier may have to
claim protection under PIE
against the interests of ensuring, that in
according those rights, a landlord is not remediless if the latter
can satisfy a court
that the occupier falls within section 5(1). The
section appears to weigh all relevant considerations and to the
extent that it
might affect a protected right under the Constitution
(and counsel referred to the right to dignity and housing) I am
satisfied
that the legislation itself balances the competing rights
and such limitations as may affect an occupier’s rights are not
by reason of the legislation itself.
109.
There remains the issue of by when the
first, third, fourth and fifth respondents are required to vacate
pending the final determination
of their eviction application.
This involves two considerations. The first is that although
nothing has been placed
before me, a court once again cannot adopt an
armchair approach. The court must be sensitive to the fact that
it is not possible
for an individual to literally pack up and leave a
place. Some arrangements must be made and while the Act itself
indicates
that the ejectment is of immediate effect this court does
not believe that the intention of the legislature is to ignore the
reality
that an evicted person is obliged to obtain other
accommodation.
110.
Weighing the relevant interests and bearing
in mind that each of the respondents was given notice of eviction and
that the period
by which he was to have left has passed with no
attempt to either remedy the breach or to pay the rent
outstanding (but rather
every intention to persist with the
non-payment of rent), on balance I am satisfied that in
complying with the various principles,
both common law and statutory,
the affected respondents should not be ejected immediately but that a
short time should be afforded
to them to be able to move out and that
the time I have indicated in the order I gave earlier this week, is
appropriate having
regard to the purpose of section 5(1) and the
specific facts of this case.
THE
ORDER
111.
Firstly there is the question of by when
the applicants are to launch proceedings for the final ejectment of
the individual respondents.
112.
The draft order presented to me would allow
the applicants to proceed by way of action proceedings. This would
effectively result
in the final determination of whether the
individual respondents should be evicted or not taking an
interminable length of time
while the respondents remain unable to
return.
113.
I must weigh that against the issue of
whether or not, if there is a dispute of fact, a court might consider
that the application
itself was ill-founded by proceeding on motion.
I have attempted to address both concerns in the order I make.
114.
My attention has been drawn to a clear
mistake in that the order included a referral to unit 46 Komati. That
was incorrect as it
is the unit occupied by the sixth respondent
against whom the applicants have been unsuccessful. To that extent I
rectify the order
I made earlier in the week. The order as rectified
reads:
1.
The application is urgent in terms
of Rule 6(12) of the Rules of Court.
2.
The Respondents are interdicted and
restrained:-
2.1
From blockading on 1 August 2014 the
entrance to the Friendship Town complex described as:
ERF
2673 COMMERCIA EXT 9 TOWNSHIP
REGISTRATION
DIVISION I.R.GAUTENG
situate
at: 2673 DOBERMAN STREET
COMMERCIA
EXT 9,FRIENDSHIP TOWN
MIDRAND,
JOHANNESBURG
(hereinafter
referred to as “the property”);
2.2
From preventing free access and
egress to the property by the Applicants’ employees, officials,
agents and tenants;
2.3
From threatening, intimidating or
assaulting any of the Applicants’ employees, officials, agents
and tenants.
3.
That the Sheriff of the Court or his
lawfully appointed Deputy is authorised and directed to ensure that
the access and egress to
the property by the Applicants’
employees, officials, agents and tenants is not restricted and to
take such steps as are
necessary to ensure that any blockade is
removed.
4.
That the Sheriff of the Court or his
lawfully appointed Deputy is authorised to approach the Johannesburg
Metropolitan Police Department
(“JMPD”) and the South
African Police Services (“SAPS”) for whatever assistance
he may require in the circumstances.
5.
That the;
5.1
First Respondent,
5.2
Third Respondent,
5.3
Fourth Respondent, and
5.4
Fifth Respondent,
are evicted
respectively from Units 10, 33, 41 and 115 Indlovu Complex at the
property pending the outcome of proceedings for a
final order
evicting each of the said Respondents, which proceedings are to be
instituted by way of application under a separate
case number, with
leave to apply to court for a referral to evidence or trial should
the matter not be capable of being determined
by ordinary motion
proceedings.
6.
That the First, Third, Fourth and Fifth
Respondents are required to vacate by no later than Sunday 31 August
2014 failing which
the sheriff is directed to secure the evictions by
no later than 1 September 2014.
7.
That the First, Third, Fourth, Fifth and
Seventh Respondents are directed to pay the costs of this
Application, including the costs
of the Applications in terms of Part
A hereof and in terms of
Section 5
(2) of the
Prevention of Illegal
Eviction From and Unlawful Occupation of Land Act 19 of 1998
.
8.
That the applicants are directed to pay the
costs of the Sixth Respondent in relation to that part of the
application for his eviction
9.
That there are no orders for costs
in respect of the application against the Eighth Respondents.
DATES
OF HEARINGS: 12 and 15 August 2014
DATE
OF ORDER: 21 August 2014
DATE
OF
EX TEMPORE
JUDGMENT 26 August 2014
DATE
OF RECEIPT OF DRAFT: 10 September 2014
REVISED
JUDGMENT: 17 October 2014
LEGAL
REPRESENTATIVES:
FOR
APPLICANTS: Adv M Rip SC
Adv
A Pullinger
Vermaak
& Partners Inc
FOR
RESPONDENTS: Adv G Shumba
Kgadima
Kekana Attorneys